In person For the v Ms K Anderson - Counsel — 2020

The claimant, a Customer Manager, was dismissed on 19 February 2019 after a drugs test at the respondent's Oldbury site indicated cannabis in his system and he admitted that he had used cannabis on his rest days in the lead-up to the test. The tribunal found that the reason for dismissal was conduct, namely failing a drug test, and held that this was a potentially fair reason under section 98(2) ERA 1996.

Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal found the investigation to be reasonable in the circumstances. It accepted that the respondent spoke to relevant witnesses, obtained evidence from Hampton Knight, and addressed the points raised by the claimant at the disciplinary and appeal stages. The tribunal also found that the claimant had been informed in writing that the disciplinary allegation included taking illegal substances and refusing to send the sample for further investigation, and it held that any issue about how the suspension meeting was recorded did not make the dismissal procedurally unfair.

The tribunal accepted that Mr Russell initially referred to an out-of-date Manager's Guidance, but found that he corrected this before making the decision and relied instead on the Drugs, Alcohol and Substance Policy and the Disciplinary Policy. It held that the respondent was entitled to rely on the failed drug test as the basis for a reasonable belief that the claimant had been under the influence of illegal drugs or impaired, even if the extent of impairment could not be determined. The tribunal rejected the claimant's inconsistency argument, finding that the comparison cases were not in truly parallel circumstances.

On sanction, the tribunal applied the band of reasonable responses approach from British Leyland v Smith and held that dismissal fell within that band, particularly given the claimant's managerial responsibility for staff and safety-related duties. It therefore concluded that the dismissal was fair and reasonable, and the unfair dismissal complaint was dismissed. No compensation or other monetary award was made.